In Nebraska, a total abortion ban could be on the horizon. In Florida, the gestational limit for abortions could drop from 15 weeks to 12. Elsewhere, lawmakers have abortion pills in their sights.
When Roe v Wade fell, most states were no longer in legislative session, meaning the term during which they usually write and pass bills had ended. In January, state legislatures will reconvene in an entirely new reality, one where conservative lawmakers are no longer constrained by the constitutional right to abortion once assured by Roe.
The midterm elections brought victories for abortion rights in a number of states. But in others, politics are on the side of anti-abortion advocates. In those reddest of states, the new state legislative sessions are likely to bring a fresh onslaught of efforts to restrict, penalize or altogether ban abortion.
Katie Glenn, the state policy director at Susan B Anthony Pro-Life America, confirms the group’s top priority in 2023 will be reducing the gestational age for legal abortion, alongside bringing new outright bans. Abortion is currently banned in 13 states.
Exactly how restrictive those bans will be remains to be seen, with conservatives across the country embroiled in conflicts over which exceptions – if any – should be allowed for abortion. “Exceptions in the case of rape and incest, we realise, are sometimes a necessary political reality. And we would not block a bill or oppose a bill that would prevent 95% of abortions,” explains Glenn.
In some states, anti-abortion advocates previously stymied by Democrats now have room to maneuver since the midterms, which brought some conservative wins. In 2022, progressive members of Nebraska’s legislature filibustered a ban proposed by Republicans, effectively killing it. But lawmakers say that the party no longer has the votes to block an abortion ban.
Meanwhile, in states where abortion bans have been mired in lengthy court proceedings, Republican majorities could pass more stringent laws when the session starts.
In Iowa, for example, a six-week ban has been held up in court since 2019. With the legislature reconvening on 9 January, it could choose to pass a new ban rather than waiting for the courts. That would be helped by the fact that, just before Roe fell, Iowa’s state supreme court ruled there is no constitutional right to abortion in the state. With the midterms solidifying conservative majorities in both chambers, that clears the path toward a tougher ban (though Republicans in the state have said they will discuss next steps only after the court resolves the lawsuit over the six-week ban).
Similarly, a six-week ban in Georgia that was recently reinstated by the state supreme court could pave the way for new restrictions when the legislature convenes, considering that Georgia’s governor, state house and state senate are all under Republican control. And in Florida, where the GOP clinched supermajorities in both chambers, legislators have indicated an interest in further limiting abortion, lowering the gestational limit from 15 to 12 weeks.
Any legislation in Florida ultimately depends on its Republican governor, Ron DeSantis. DeSantis has grown quiet on the issue as bans have increasingly proven unpopular, and since he is weighing up a 2024 presidential bid, he may hold off.
Nor does Republican control over state governments elsewhere necessarily guarantee new restrictions. In some states, consensus has been hard to come by in a GOP increasingly mired by internal divisions.
In South Carolina, for example, several attempts to pass an abortion ban in special session in 2022 failed despite a strong Republican majority.
Lawmakers were at odds over how far a ban should go, with some supporting an exception for young rape victims, or in cases where there would be no chance of the fetus surviving outside the womb. Ultimately, those differences proved insurmountable: neither side budged, and none of the proposed bans moved forward. A separate six-week ban is making its way through state courts, and abortion in the state remains legal up until 22 weeks.
Targeting medication abortion
Conservatives are increasingly concerned with how to enforce abortion bans in a climate where people can access pills online and manage their own abortions. Medication abortion is approved by the Food and Drug Administration, and considered very safe in the first trimester. In Oklahoma, lawmakers have asked the state attorney general to clarify whether self-managed abortion through pills violates the law.
Introducing in-person screening requirements is another way to make abortion medication harder to access, especially in states without bans. For example, a Kansas law tried to ban providers from prescribing for medication abortion through telehealth. That law was shot down by a judge last month.
Restricting telemedicine is one route anti-abortion advocates will take to target medication abortion this year, says Glenn, of SBA Pro-Life America.
Students for Life America, another anti-abortion group, intends to go after medication abortion through environmental laws, through bills that would require fetal tissue to be treated as medical waste, curtailing the ability for people to manage their abortions at home. A petition to that effect has already been filed at the federal level with the Food and Drug Administration.
States that ban abortion typically impose criminal penalties on providers who violate bans, but exempt – at least formally – the person actually seeking the abortion. Far-right groups have advocated for an end to that exemption, but their efforts have so far proved politically untenable: in Louisiana, a bill looking to bring murder charges against people who end their own pregnancies failed to pass over the summer, with most Republicans finding it too extreme.
Abortion rights advocates are bracing themselves for further such efforts, including bills to criminalize out-of-state travel for abortion – an effort attempted in 2022 by Missouri, without success.
“Over a dozen states that put abortion bans in effect in 2022 are states with trifectas that are hostile to abortion rights. In those states that have been the most rabidly anti-abortion, we expect to see a next generation of measures that either remove the exemptions in the current law, or increase the penalties or the enforcement mechanisms” to ban abortions, says Jessica Arons, senior policy counsel for the ACLU.
They are also watching efforts to widen the net to penalize those providing assistance to people seeking abortions, including employers.
Other legislation already filed in Texas ahead of the new legislative sessionincludes a bill that would count a fetus as a person in the HOV lane; another that would limit tax subsidies for businesses providing support for employees seeking abortions; and legislation that would make it harder for prosecutors to refuse to enforce abortion bans.
Bolstered protections in blue states
Amid the barrage of restrictions, other states have made moves to bolster protections for abortion rights. In the midterms, Michigan, Vermont and California protected abortion in their state constitutions. And throughout the country, there are moves to pass and strengthen so-called “shield laws” to protect providers caring for patients from states with bans.
“People are looking at those shield laws to see if there are any protections for abortion funds, for example,” explains the Guttmacher Institutes’ policy expert Elizabeth Nash. “If you’re an abortion fund in California, and you give money to somebody from Texas to come to California for an abortion, what kind of protections do we need [to make sure they’re not legally liable]?”
Since Roe fell, states like California, Maryland and Delaware have expanded access, including to those from out of state, by passing laws enabling nurses to perform abortions. Meanwhile, in New York, the governor, Kathy Hochul, has allocated millions of dollars to abortion providers and the state is also pursuing efforts to enshrine abortion rights in the state’s constitution.
These types of efforts are what states hoping to bolster protections will be looking to. “People are seeing where there are gaps are in these laws, and trying to fill them basically,” Nash says.
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